Last week a U.S. District Court judge approved a settlement in a class action lawsuit between the New Jersey Department of Education and 5,000 families of New Jersey special education students. According to federal and state law, when parents disagree with the services offered to their children with disabilities, they can go to “due process” and an Administrative Law Judge (ALJ), has 45 days to render a decision. But in NJ, according to a 2018 report delivered to Gov. Phil Murphy, ALJ’s were taking between 212-312 days to reach a decision, far longer than the law allows, which the report called “a travesty of justice,” describing how “many students in New Jersey are left in limbo: in inappropriate placements, receiving inadequate services, or not being evaluated in order to determine their need for special education and related services.”

According to the settlement agreement between the NJ DOE and the plaintiffs,

• The court will appoint a Compliance Monitor to oversee NJDOE’s efforts to comply with the Settlement. The Compliance Monitor will provide monitoring reports to the public every four months.  

• Within 18 months of final Settlement approval, NJDOE must demonstrate for a four-month period, a 95% compliance rate for hearing and deciding due process petitions within the 45- day timeline. If achieved, NJDOE may move to terminate the Consent Order; if the Class objects, the court will decide whether to terminate the Order. 

• The Class may file a motion for contempt if, at the end of the 18 months, the Compliance Monitor finds a less than 95% compliance rate. The Class may seek relief like the appointment of a Special Master or an Order for NJDOE to develop a remediation plan, subject to court approval. If the NJDOE objects,

Some have objected to the settlement, noting their is no meaningful compensation for the affected families and their children; all benefits will be for families involved in future due process proceedings. Fees for plaintiffs’ lawyers will be paid by the NJ DOE and capped at $4.75 million. The plaintiffs named in the suit will get $5,000 each, paid for by the the DOE, which can’t use federal funds.

The report, written by a group called New Jersey Special Education Practitioners, says the DOE will need to not only hire more ALJ’s but also ensure they are knowledgeable about special education. Additionally, “a broader commitment” from the state is “ultimately needed” to resolve special education disputes in a fair and timely manner.

In 2019, the U.S. Department of Education released a letter that said  less than 5% of the 1,300 due process complaints were resolved on time in New Jersey. Five families who sued had waited more than 300 days for a resolution to their cases, with one waiting 791, or more than two years.

Peg Kinsell, policy director of SPAN Parent Advocacy Network, said, “those who tried to access their procedural safeguards through the due process system have waited far too long for resolution. This is true of many New Jersey families, especially those that are under-resourced and cannot afford legal representation.”

Families who have to wait more than 45 days for the ALJ’s decision can file suit for the next two years.

The NJ DOE did not immediately respond to a request for comment.